May 2018 Volume LIII Number 3

Litch's Law Log

Washington State Academy and AAPD Weigh in on State Dental Board Specialty Advertising Regulations

I think our members will appreciate that the AAPD and its state chapters are committed to promoting reasonable state dental board regulation of specialty advertising announcements. In that vein, a recent joint letter submitted to the Washington State Dental Quality Assurance Commission is a good example of these efforts. I think the issues raised in the letter are self-explanatory.

March 2, 2018
Dear Ms. Santiago:

The Washington State Academy of Pediatric Dentistry (WSAPD) and the American Academy of Pediatric Den- tistry (AAPD) are writing to comment on proposed changes to the Washington Administrative Code (WAC) by the Dental Quality Assurance Commission (DQAC). WSAPD is the state organization which represents the dental specialty of pediatric dentistry and is the state chapter of the AAPD. The AAPD is the leading national advocate dedicated exclu- sively to children’s oral health and representing the specialty of pediatric dentistry.1

DQAC is considering an amendment to the following regulation:

"WAC 246-817-420

Specialty representation.

(1) It shall be misleading, deceptive or improper conduct for a dentist to represent or imply that he/she is a specialist or use any of the terms to designate a dental specialty such as:

or any derivation of these specialties unless he/ she is entitled to such specialty designation un- der the guidelines or requirements for specialties approved by the Commission on Dental Ac- creditation and the Council on Dental Educa- tion of the American Dental Association, or such guidelines or requirements as subsequently amended and approved by the DQAC, or other such organization recognized by the DQAC.

(2) A dentist not currently entitled to such specialty designation shall not represent that his/her practice is limited to providing services in a specialty area without clearly disclosing in the representation that he/she is a general dentist. A specialist who represents services in areas other than his/her specialty is considered a general dentist."

Per the November 17, 2017 filing, DQAC is consider- ing an amendment to recognize disciplines approved by the American Board of Dental Specialties.

We would like to provide a little background about the specialty of pediatric dentistry.

Pediatric dentists are the pediatricians of dentistry. The specialty of pediatric dentistry is an age-defined specialty that provides both primary and comprehensive preventive and therapeutic oral health care for infants and children through adolescence, including those with special health care needs. This includes but is not limited to: the manage- ment of the growth and development of the jaws and teeth of children; counselling and primary dental care; dental dis- ease management and treatment; comprehensive advanced behavior management techniques including proper admin- istering of local anesthesia, inhalation sedation and proper in office sedation or hospital dentistry. These are just a few of the specialty techniques that are taught in our specialty residency training programs.

In order to become a specialist in pediatric dentistry, an additional two to three years of advanced residency train- ing is required following graduation from dental school. As a result of this additional training, pediatric dentists are uniquely qualified to be the primary and specialty oral care providers for infants and children through adolescence, including those with special health needs. Pediatric dentists are also eligible to become board certified and Diplomates of the American Board of Pediatric Dentistry (the specialty certifying board of Pediatric Dentistry). This requires a pediatric dentist to have credentials verified while success- fully completing voluntary examinations and re-certification. Currently 75 percent of all pediatric dentists in the U.S. are board certified.

Proper techniques are important as they aid in achiev- ing positive dental outcomes and experiences for a child. We believe the establishment of trust and a positive attitude towards dental health and their future dental well-being and care is important. Pediatric dentistry Best Practices and Clinical Guidelines have been established and are constantly reviewed and updated by the AAPD so that the practice of pediatric dentistry is effective, safe, and evidence-based.

Therefore, we believe that the children and families of Washington deserve to know whether a pediatric dentist specialist is their dental provider, and this should be clearly distinguishable in advertisements from services provided by a general dentist. It is in the very best interest and safety for the public to continue to acknowledge the ADA recognized specialty of pediatric dentistry. It is critical for the DQAC to continue to protect the public from any misinformation and confusing advertising. This is especially important because pediatric dentistry is the only age-defined dental specialty. Because of this fact, we believe it is inappropriate and unethical for a non-pediatric dentist to advertise with terms such as "Children’s Dentistry" or "General Dentistry prac- tice limited to pediatric dentistry" or "General Dentistry with emphasis on pediatric dentistry." We urge that specific language to this effect be included under WAC 246-817-420 (e), to further strengthen this provision. Trust is essential to the provider and patient relationship. It is imperative to aid the public in discerning the difference between general dentists who provide dental services for children versus a pediatric dentist. Ethical regulations for advertising the spe- cialty of pediatric dentistry should also include social media, as well as print advertising.

As for consideration of additional "specialties", at the very minimum the DQAC should not allow any dentist to advertise as a specialist without completing a Commission on Dental Accreditation (CODA)-accredited post-doctoral residency.

To do otherwise would be inconsistent with protection of the public. CODA is nationally recognized by the United States Department of Education (USDE) as the sole agency to accredit dental and dental-related education programs conducted at the postsecondary level. CODA’s mission is to "serve the public and profession by developing and imple- menting accreditation standards that promote and monitor the continuous quality and improvement of dental educa- tion programs." CODA accomplishes this through a rigor- ous process of stakeholder engagement and peer review.

While 3 of the 4 specialties recognized by the American Board of Dental Specialties do require completion of a CODA post-doctoral residency, the American Association of Implant Dentistry (AAID) does not require completion of a CODA program. Also, it should be noted that with creation of the new National Commission on Recognition of Dental Specialties and Certifying Boards, nothing would preclude the disciplines currently recognized by ABDS to apply for dental specialty recognition before this commission.

As a final point, we urge the DQAC not to over-react in haste to the case of American Academy of Implant Dentistry v. Parker.2 That decision upheld a district court decision that the state board could not restrict advertising as a dental special- ist to only ADA-recognized specialties. The court believed the board had failed to demonstrate harm it was trying to prevent. However, the court went on to say that:
"We do not suggest that the Board may not impose appropriate restrictions in the area of dental specialist advertising. The plaintiffs agree that advertising as a specialist is potentially misleading and that reason- able regulation is appropriate. We hold only that the Board has not met its burden on the record before us to demonstrate that Section 108.54, as applied to these plaintiffs, satisfies Central Hudson’s test for regulation of commercial speech."

Therefore, the current language under WAC 246-817- 420 should be retained and strengthened in subparagraph (e) related to pediatric dentistry as recommended in these comments.

The WSAPD and AAPD would be pleased to respond to any questions or comments from the DQAC concerning these comments. Thank you for this opportunity to voice our opinions on this matter.

1 The American Academy of Pediatric Dentistry (AAPD) is the recognized authority on children’s oral health. As advocates for children’s oral health, the AAPD promotes evidence-based policies and clinical guidelines; educates and informs policymakers, parents and guardians, and other health care professionals; fosters research; and provides continuing professional education for pediatric dentists and general dentists who treat children. Founded in 1947, the AAPD is a not-for-profit profes- sional membership association representing the specialty of pediatric dentistry. Its 10,000 members provide primary care and comprehensive dental specialty treatments for infants, children, adolescents and individuals with special health care needs.
2 No. 16-50157 (5th Cir. 2017), U.S. Court of Appeals for the Fifth Circuit decision of June 19, 2017.

For further information contact Chief Operating Officer and General Counsel C. Scott Litch at (312) 337-2169 ext. 29, or slitch@aapd.org.

This column presents a general informational overview of legal issues. It is intended as general guidance rather than legal advice. It is not a substitute for consultation with your own attorney concerning specific circumstances in your dental practice. Mr. Litch does not provide legal representation to individual AAPD members.